HOTTENSTEIN et al v. CITY OF SEA ISLE CITY et al
Filing
56
OPINION. Signed by Judge Joseph E. Irenas on 8/18/2011. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES S. HOTTENSTEIN,
Administrator for the Estate
of Tracy Hottenstein; CHARLES
S. HOTTENSTEIN; and ELIZABETH
K. HOTTENSTEIN
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 11-740
(JEI/JS)
Plaintiffs,
OPINION
v.
CITY OF SEA ISLE CITY; et al.,
Defendants.
APPEARANCES:
THE WESCOTT LAW FIRM, P.C.
By: Lyanne B. Wescott, Esq.
239 South Camac Street
Philadelphia, Pennsylvania 19107
Counsel for Plaintiff
POWELL, BIRCHMEIER,& POWELL, P.C.
By: James R. Birchmeier, Esq.
1891 State Highway 50
P.O. Box 582
Tuckahoe, New Jersey 08250
Counsel for Defendants Sea Isle City, Harold Boyer,
Thomas McQuillen, and Vincent Haugh
FOX ROTHSCHILD, L.L.P.
By: Eric M. Wood, Esq.
1301 Atlantic Avenue, Suite 400
Atlantic City, New Jersey 08401
Counsel for Defendants Atlantic Regional Medical
Center, Atlanticare MICU Medics at Base 3, and Atlantic
City Medical Center
BLUMBURG AND LINDER, L.L.C.
By: Jay J. Blumburg, Esq.
158 Delaware Street
P.O. Box 68
1
Woodbury, New Jersey 08096
Counsel for Defendant Zaki Khebzou
CAMACHO MAURO MULHOLLAND, LLP
By: Christopher C. Mauro, Esq.
350 Fifth Avenue, Suite 5101
New York, New York 10118
Counsel for Defendants Landis Thirty Nine, Inc., Jersey
Shore Properties, LLC, Michael Roberts, Ralph Pasceri,
and Joseph Roberts
MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS
By: Stephen Ledva, Jr., Esq.
2070 Springdale Road, Suite 400
Cherry Hill, New Jersey 08003
Counsel for Defendants Bennett Enterprises, Inc., Paul
Baldini, and James J. Bennett
PRUTTING & LOMBARDI ESQS.
By: Marilou Lombardi, Esq.
701 South White Horse Pike
Audubon, New Jersey 08106
Counsel for Defendants Mark Lloyd and Patricia Lloyd
WHITE, FLEISCHNER, & FINO, L.L.P.
By: Brian Michael Thon, Esq.
2137 Route 35
Holmdel Corporate Plaza
Holmdel, New Jersey 07733
Counsel for Defendant Michael Miloscia
IRENAS, Senior District Judge:
This wrongful death / survivorship suit arises out of the
untimely and tragic death of Tracy Hottenstein.1
Presently
before the Court are Motions for Judgment on the Pleadings
pursuant to Federal Rule of Civil Procedure 12(c) filed by
Defendants Zaki Khebozou and Atlanticare Regional Medical Center,
1
The Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28
U.S.C. § 1367.
2
Atlanticare MICU Medics at Base 3, and Atlantic City Medical
Center (collectively “ARMC”).
I.
Sometime after 2:15 a.m. on February, 15, 2009, in Sea Isle
City, Tracy Hottenstein, who was intoxicated at the time, fell
off a public dock into the ocean below.
The Complaint avers that
the weather was 35 degrees Fahrenheit and windy.
Several hours
later, Tracy was discovered unresponsive on the ground near the
dock.
Tracy was visiting Sea Isle City for the annual “Polar Bear
Plunge,” an event which the Complaint alleges is intended to
“benefit the town economy and allow local businesses to make
money in the winter season from the thousands of visitors
expected.”
(Compl. ¶ 29.)
However, Tracy did not participate in
the organized plunge into the Atlantic Ocean.
She only came to
“attend[] the festivities,” including “visiting the local bars”
with her friends.
(Id. ¶ 38.)2
According to the Complaint, over
the course of several hours on February 14, 2009, Tracy visited
three bars and a friend’s house where she consumed alcohol.3
The Complaint avers what happened next:
2
The Complaint asserts that Tracy was 35 years old.
(Compl. ¶ 36.)
3
For a more detailed discussion of these events, see
Hottenstein v. Sea Isle, --- F.Supp. 2d ---, 2011 WL 2470043
(D.N.J. 2011).
3
[v]ideo shows that [Tracy] without any outdoor clothing
on, followed [her fiend] Miloscia out of the Ocean Drive
bar at or about 2:15 a.m. on February 15, 2009. . . .
Miloscia at some point abandoned [Tracy] . . . . [Tracy]
in her intoxicated state[,] wandered to the dark,
dangerous public docks from the Ocean Drive bar, fell
off into the dark icy water and struggled out to the
location she was found the morning of February 15, 2009.
(Compl. ¶¶ 60-62.)
The Sea Isle City police officers who arrived at the scene
determined, based solely on feeling for a carotid pulse, that
Tracy was deceased.
(Id. ¶ 75.)
When the Sea Isle City
Volunteer Ambulance Corps arrived at the scene at 7:52 a.m., they
viewed Tracy from a distance of twenty feet and reported her
“dead on arrival” without examination.
(Id. ¶ 77-78.)
At 8:13
a.m., Atlanticare MICU medics, a mobile trauma team associated
with Atlanticare Regional Medical Center, arrived on the scene
and observed Tracy from a distance of six feet.4
(Id. ¶ 80.)
Despite the fact that no medical treatment had been administered
and no examination of Tracy conducted, an Atlanticare medic
telephoned Defendant Zaki Khebzou, Trauma Chief, who pronounced
Tracy dead at 8:22 a.m. over the phone.5
(Id. ¶ 84, 86.)
The Complaint alleges the following claims against the
moving Defendants: (1) negligence; (2) negligent hiring,
4
The Sea Isle police officers allegedly prevented anyone
from approaching Tracy or rendering medical treatment. (Compl.
¶¶ 76-77, 80.)
5
Defendant Zaki Khebzou is an M.D.
4
supervision and retention; (3) vicarious liability (only against
ARMC); (4) negligent infliction of emotional distress upon
Plaintiffs (Tracy’s parents); (5) a survival claim; (6) wrongful
death; and (7) a claim pursuant to New Jersey’s Civil Rights Act,
N.J.S.A. 10:6-1 et seq.
Defendants Khebzou and ARMC move for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c), arguing that all
claims against them should be dismissed.
II.
Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings
are closed--but early enough not to delay trial--a party may move
for judgment on the pleadings.”
Fed. R. Civ. P. 12(c).
A Rule
12(c) Motion for Judgment on the Pleadings is subject to the same
standard of review as a Rule 12(b)(6) Motion to Dismiss.
Turbe
v. Gov’t of V.I., 938 F.2d 427, 428 (3d Cir. 1991); see also
Spruell v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004); Collins
v. F.B.I., 2011 WL 1624025, at *4 (D.N.J. April 28, 2011).
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”
In order to survive a motion to
dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).
5
While a court must accept as true all allegations in the
plaintiff’s complaint, and view them in the light most favorable
to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008), a court is not required to accept sweeping
legal conclusions cast in the form of factual allegations,
unwarranted inferences, or unsupported conclusions.
Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
The
complaint must state sufficient facts to show that the legal
allegations are not simply possible, but plausible.
515 F.3d at 234.
Phillips,
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009).
III.
A.
Defendants Khebzou and ARMC argue that they are entitled to
immunity under N.J.S.A. § 26:2K-29, which provides:
No
EMT-intermediate,
licensed
physician,
hospital or its board of trustees, officers
and members of the medical staff, nurses or
other employees of the hospital, or officers
and members of a first aid, ambulance or
rescue squad shall be liable for any civil
damages as the result of an act or the
omission of an act committed while in training
for or in the rendering of intermediate life
support services in good faith and in
accordance with this act.
6
N.J.S.A. § 26:2K-29 (emphasis added).
This act only provides
immunity for an act or omission made in connection with the
“rendering of intermediate life support services.”
N.J.S.A. § 26:2K-21(i) defines “intermediate life support
services” as “an intermediate level of pre-hospital, interhospital, and emergency service care which includes basic life
support functions,6 cardiac monitoring, cardiac defibrillation,
the use of the esophageal obturator airway, and the use of
military anti-shock trousers and other techniques and procedures
authorized by the commissioner[.]”
N.J.S.A. § 26:2K-21(i).
Here, there appears to be no dispute that Defendants Khebzou
and ARMC did not provide any life support services.
Rather,
moving Defendants argue that their decision to not provide life
support services is an omission to act, protected by the immunity
provision of N.J.S.A. § 26:2K-29.7
at 9.)
(Khebzou Br. at 10; ARMC Br.
However, immunity under the Act is provided only “for
6
“Basic life support” means “a basic level of pre-hospital
care which includes patient stabilization, airway clearance,
cardiopulmonary resuscitation, hemorrhage control, initial wound
care and fracture stabilization and other techniques and
procedures authorized by the commissioner[.]” N.J.S.A. § 26:2K-
21(b).
7
ARMC also contends that their “visual observations” of
Tracy’s body and the phone call to Defendant Khebzou “are
encompassed in the rendering of intermediate life support
services.” (ARMC Reply at 7.) However, ARMC cites no case law to
substantiate such a position which is not supported by the plain
language of the immunity provision and the statutory definition of
“intermediate life support services.”
7
negligence in connection with the actual rendering of life
support services.”
DeTarquino v. City of Jersey City, 352
N.J.Super. 450, 452 (App. Div. 2002).
The Complaint alleges that Defendant Khebzou improperly
declared Tracy dead without seeing her, examining her or ordering
any pre-hospital care.
(Compl. ¶¶ 86-90, 105, 108.)
With
respect to ARMC, the Complaint alleges that they breached their
duty to act and provide emergency medical care.
(Id. ¶¶ 81, 82.)
The basis of Plaintiffs’ negligence claim against moving
Defendants is that they were negligent in failing to render
intermediate or basic life support services.
Thus, they are not
entitled to immunity as they did not omit to act “while . . . in
the rendering of intermediate life support services” as required
by the plain language of the statute.
N.J.S.A. § 26:2K-29.
Accordingly, Defendant Khebzou’s and ARMC’s Motions with
respect to Counts One, Two, Three, Five, Six and Seven will be
denied.
B.
A claim for negligent infliction of emotional distress
(“NIED”) requires proof of the following elements:
“(1) the
death or serious physical injury of another caused by defendant’s
negligence; (2) a marital or intimate, familial relationship
between plaintiff and the injured person; (3) observation of the
death or injury at the scene of the accident; and (4) resulting
8
severe emotional distress.”
Portee v. Jaffee, 84 N.J. 88, 101
(1980).
Defendants Khebzou and ARMC move to dismiss the NIED claim
against them, arguing that Plaintiffs cannot establish prong
three because they were not present at the scene of the accident
and therefore did not observe Tracy’s death or injury.
Br. at 13; ARMC Br. at 13.)
(Khebzou
Plaintiffs point out that there is a
question of fact regarding exactly when and where Tracy died of
hypothermia.
Therefore, they argue, “[i]t will be a jury
question as to whether the gruesome idea that their daughter may
have been zipped into a body bag while still alive and their
subsequent exposure to same is a ‘shocking event’ adequate to
fulfill the ‘observation’ element of the this claim.”
(Pls’ Opp.
at 11.)
The allegations in the Complaint do not implicate
Plaintiffs’ contemporaneous perception of their daughter’s injury
or death for the purposes of maintaining an NIED claim.
According to the Complaint, Plaintiffs were notified of Tracy’s
death “in the early afternoon of February 15, 2009, by two local
police officers who came to their home in Montgomery County,
Pennsylvania.”
(Compl. ¶ 112.)
Plaintiffs were not present in
Sea Isle City, the site of Tracy’s injury and the location where
she was pronounced dead.
Moreover, Plaintiffs do not even allege
that they witnessed Tracy being “zipped into a body bag,” merely
9
that the “gruesome idea” of it was a shocking event.
Thus, while “[d]iscovering the death or serious injury of an
intimate family member will always be expected to threaten one’s
emotional welfare,” a family member who was not a witness at the
scene of the accident causing death or serious injury cannot
sustain a cause of action for NIED.
Portee, 84 N.J. at 99-100.
Accordingly, Defendant Khebzou’s and ARMC’s Motions will be
granted with respect to Plaintiffs’ NIED claim in Count Five.
C.
Defendants Khebzou and ARMC move to dismiss the claims under
the New Jersey Civil Rights Act (“NJCRA”) arguing that they did
not act under color of state law.
NJCRA provides, in relevant part,
[a]ny person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or any substantive rights, privileges
or immunities secured by the Constitution or laws of
this State, or whose exercise or enjoyment of those
substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with,
by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action
for damages and for injunctive or other appropriate
relief.
N.J.S.A. § 10:6-2(c).
Since “[t]his district has repeatedly interpreted NJCRA
analogously to § 1983,” see Pettit v. New Jersey, No. 09-3735,
2011 U.S. Dist. LEXIS 35452 at *3 (D.N.J. Mar. 30, 2011), this
10
Court will look to the color of law analysis for § 1983 claims.
The Third Circuit has most recently explained,
[a]lthough there is no simple line between state and
private actors, we have explained that the principal
question at stake is whether there is such a close
nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as
that of the State itself. To answer that question, we
have outlined three broad tests generated by Supreme
Court jurisprudence to determine whether state action
exists: (1) whether the private entity has exercised
powers that are traditionally the exclusive prerogative
of the state; (2) whether the private party has acted
with the help of or in concert with state officials;
and (3) whether the state has so far insinuated itself
into a position of interdependence with the acting
party that it must be recognized as a joint participant
in the challenged activity.
Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)(internal citations
and quotations omitted).
Plaintiffs argue that Defendants Khebzou and ARMC acted
under color of state law when they followed procedures set forth
in the New Jersey Administrative Code regarding the pronouncement
of death and other standards of medical care.8 (Pls’ Opp. to
Khebzou at 11-12.)
This argument lacks merit, as compliance with
state standards or engagement in an activity regulated by the
state does not convert a private party into a state actor for the
purposes of the NJCRA.
Moreover, Plaintiffs’ NJCRA claim also
8
Plaintiffs’ bare speculation that ARMC “acted jointly with
the police” is insufficient to state a claim under the NJCRA.
(Pls’ Opp. to ARMC Motion at 13.) Such a conclusory allegation
does not satisfy the “fact-specific” “inquiry” required by the
state actor analysis. Kach, 589 F.3d at 646.
11
fails because the Complaint does not plead that Tracy’s rights
were violated “by threats, intimidation, or coercion” as clearly
required by the statute.
N.J.S.A. § 10:6-2(c).
Accordingly, Defendant Khebzou’s and ARMC’s Motions with
respect to the NJCRA claim asserted against them in Count
Thirteen will be granted.
IV.
For the foregoing reasons, Defendant Khebzou’s and ARMC’s
Motions for Judgment on the Pleadings will be granted with
respect to Plaintiffs’ NIED and NJCRA claims only.
An
appropriate order will be issued.
Dated: August 18, 2011
s/Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
12
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